# Smt. Chamela v. Maharajdin & Ors

- **Citation:** (2019) 1 ILRA 29
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-02
- **Case number:** Second Appeal No. 447 of 1981
- **Bench:** Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-chamela-v-maharajdin-ors-44453
- **Pages:** 4

## Headnote

C.P.C.- Suit for cancellation of power of
attorney and sale deed - on ground of
impersonation - Trial court applied principle
of 'Pardanashin'- plaintiff being villager,
rustic and uneducated lady. First appellate
Court held - principle of 'Pardanashin' not
applicable as plaintiff pleaded impersonate.
No substantial question of law.

B. Second Appeal - Scope of Section 100
C.P.C. - Burden of proof - Once execution
of registered power of attorney admitted
in examination-in-chief - No doubt as to
veracity of such power of attorney -
Burden of proof did not shift upon
defendants - Finding being a question of
fact recorded by lower appellate court on
the basis of evidence - Need not to be
interfered.
C. Second Appeal - Scope of Section100
C.P.C.- Sale deed executed by attorney.
Plea
of
insufficient
consideration
-
would not affect rights of vendee under
the sale deed.

D. Second Appeal - Scope of Section 100
C.P.C. - Section 168-A U.P. Seminary
Abolition and Land Reforms Act. Lack of
permission under Section 5-c(ii) of U.P.
Consolidation of Holdings Act -Held:
finding of lower appeal court - Plots were
neither
fragmented
nor
consolidation
operations were going on. Village was denotified before sale deed executed. No
requirement of prior permission being
necessary
for
any
consolidation
proceedings being in progress at the
relevant point of time - No interference
warranted. (E-1)

## Text

1 All. Smt. Chamela Vs. Maharajdin & Ors.
29
Self-Financed Independent Schools (Fee
Regulation) Act, 2018.

25. The writ petition for the reasons
given above, lacks merit and hence is
dismissed in limine at threshold.
------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.09.2019

BEFORE
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Second Appeal No. 447 of 1981

Smt. Chamela ...Appellant
Versus
Maharajdin & Ors. ...Respondents

Counsel for the Appellant:
Sri
Arif
Khan,
Sri
Anurag
Narain
Srivastava, Mohiuddin Khan

Counsel for the Respondents:
Anurag Narain, Anurag Narain Srivastava,
D.C. Mukerjee, Gauri Shanker Maurya,
Mukesh Sharma, S.P. Maurya

A. Second appeal - Scope of Section100
C.P.C.- Suit for cancellation of power of
attorney and sale deed - on ground of
impersonation - Trial court applied principle
of 'Pardanashin'- plaintiff being villager,
rustic and uneducated lady. First appellate
Court held - principle of 'Pardanashin' not
applicable as plaintiff pleaded impersonate.
No substantial question of law.

B. Second Appeal - Scope of Section 100
C.P.C. - Burden of proof - Once execution
of registered power of attorney admitted
in examination-in-chief - No doubt as to
veracity of such power of attorney -
Burden of proof did not shift upon
defendants - Finding being a question of
fact recorded by lower appellate court on
the basis of evidence - Need not to be
interfered.
C. Second Appeal - Scope of Section100
C.P.C.- Sale deed executed by attorney.
Plea
of
insufficient
consideration
-
would not affect rights of vendee under
the sale deed.

D. Second Appeal - Scope of Section 100
C.P.C. - Section 168-A U.P. Seminary
Abolition and Land Reforms Act. Lack of
permission under Section 5-c(ii) of U.P.
Consolidation of Holdings Act -Held:
finding of lower appeal court - Plots were
neither
fragmented
nor
consolidation
operations were going on. Village was denotified before sale deed executed. No
requirement of prior permission being
necessary
for
any
consolidation
proceedings being in progress at the
relevant point of time - No interference
warranted. (E-1)

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Mohd. Arif Khan,
learned Senior Counsel, assisted by Sri
Mohd. Aslam Khan, learned counsel for
the appellant and Sri Anurag Narain who
has put in appearance on behalf of the
respondents.

2. This second appeal has arisen
against the judgement and decree dated
10.4.1981 rendered in Civil Appeal No.
167/79 reversing the judgement and decree
rendered by the trial court on 7.5.1979 in
Regular Suit No. 173/78. The appeal was
admitted
by
order
dated
29.5.1981,
however, substantial questions of law came
to be framed when the appeal was heard on
9.5.2019. The substantial questions of law
framed by this Court read as under:

"1. Whether the lower appellate
court has rightly construed the principle
of Pardaneshin lady while setting aside
the trial court judgment?
30 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Whether the burden of proof of
non-execution of impugned Mukhtarnama
dated 29.7.1976 lay on the plaintiffs and
as to whether the sale-deed was hit by the
statutory bar as mentioned in para 6 of
the plaint and the courts below have
rightly dealt with the same."

3. Briefly stated, the facts of the case
are that one Smt. Chamela brought about a
suit for cancellation of registered power of
attorney allegedly obtained by impersonation
on 29.7.1976 as well as for cancellation of
the sale deed dated 4.8.1976 through such
attorney impleading the purchasers of the
property as defendants no. 1, 2 and 3 as well
as the attorney holder as defendant no. 4.
After exchange of pleadings, the trial court
proceeded to frame two issues. The first issue
was framed to the effect "as to whether the
power of attorney as well as the sale deed, in
view of what was stated in paragraph 6 of
the plaint, was liable to be cancelled" and
the second issue was "as to whether, in view
of what was stated in paragraph 6-A of the
plaint, the sale deed and the power of
attorney were liable to be cancelled".

4. The trial court considered issues
no. 1 and 2 jointly for the purpose of
adjudication. The trial court having regard
to the evidence on record proceeded to
construe the benefit of Pardanashin lady
in favour of the plaintiff, treating her to be
a villager, rustic and uneducated lady. It
was also observed by the trial court that
insofar
as
the
payment
of
sale
consideration
is
concerned,
an
inconsistent stand was taken by the
defendants, therefore, once the execution
of power of attorney having been denied
by the plaintiff stood disproved, the sale
deed
executed on her behalf was
consequently bad in the eye of law. The
suit was accordingly decreed in favour of
the appellant-plaintiff who is survived by
the
legal
representatives
substituted
during pendency of this appeal.

5. The judgement and decree
rendered by the trial court on 7.5.1999 in
Regular Suit No. 173/78 came to be
questioned in Civil Appeal No. 167/79.
The appellate court below on the aspect of
validity of power of attorney framed the
point of determination and went into the
correctness
of
the
appreciation
of
evidence by the trial court and by reappreciating the evidence, has recorded
findings reversing the findings recorded
by the trial court, to the contrary.

6. The first appellate court below,
insofar as the extension of principle of
Pardanashin lady to late Smt. Chamela is
concerned, has observed that such a
principle was not applicable in the facts and
circumstances of the present case for the
reason that Smt. Chamela in the present
case had denied the execution of power of
attorney and had rather pleaded that the
same was impersonate. Once a case of this
description was pleaded in the plaint, there
was no admission of any physical act of
which consciousness or unconsciousness
was to be proved treating her to be a
Pardanashin lady. The first appellate court
also proceeded to observe that Smt.
Chamela who had previously executed the
registered power of attorney on 11.1.1967
in favour of one Faiya Singh and Bam
Bahadur Singh for pairvi of cases but such a
fact was not disclosed in the plaint. The
later power of attorney in favour of Faiya
Singh alone was also registered which
included the power of sale.

7. The first appellate court below,
insofar as the power of attorney executed on
29.7.1976 inclusive of power to sell is
1 All. Smt. Chamela Vs. Maharajdin & Ors.
31
concerned, has observed that once the
execution of such a power of attorney was
admitted by the executant in paragraph 9, 12
and 13 of the examination-in-chief, no
question to doubt the veracity of such a power
of attorney for shifting the burden of proof
upon the defendants would arise and in fact,
the evidence available on record proved
beyond doubt that she herself had executed
the registered power of attorney executed on
29.7.1976. This finding being a question of
fact, has been recorded by the first appellate
court below on the basis of evidence.

8. Having heard the arguments at
length on the aspect of Pardanashin lady,
extending the same benefit to the
appellant-plaintiff treating her illiterate
and
uneducated
village
lady,
the
disapproval by the first appellate court, in
my humble opinion, has correctly been
opined by the appellate court below and
the view taken by the trial court being
erroneous has rightly been set right.

9. Insofar as payment of sale
consideration to late Smt. Chamela is
concerned, the first appellate court below
has merely supported the legitimate sale
consideration which the attorney, Faiya
Singh, out of his free will, had set out to
the disadvantage of appellant-plaintiff. It
was the appellant-plaintiff's authority to
sell the property which was misused by
the attorney and the resultant cause, if
any, would arise against the attorney
alone. The attorney as per his own
statement has admitted the receipt of sale
consideration to the tune of Rs. 5000/-
although the real price of the property in
dispute might have been Rs. 40,000/- as
quantified.

10. Learned counsel for the
appellant has not placed any judgement or
law on the point as to how a registered
sale deed for a definite consideration
though mentioned contrary to the market
value of property, can be understood to be
a nullity within the ambit of law.

11. Once the authority to transfer
was duly held by power of attorney and
his authority to transfer did not lack
legitimacy, the judgement rendered by the
first appellate court below on the premise
of evidence of the contesting witness
(plaintiff) as well as the attorney, in my
humble opinion, does not leave any scope
for interference within the scope of
Section 100 CPC.

12. Learned counsel for the
appellant has also taken this Court
through the aspect of fragmentation of the
plots being hit by Section 168-A of U.P.
Zamindari Abolition and Land Reforms
Act affecting the sale transaction as well
as for the lack of permission under
Section 5-c(ii) of U.P. Consolidation of
Holdings
Act,
the
sale
deed
was
attempted to be established as void.

13. Having closely scrutinuzed the
judgement rendered by the first appellate
court below, the categorical finding
recorded by the appellate court is to the
effect that the plots transferred through
the impugned sale deed were neither
fragmented nor at the relevant point of
time, any consolidation operations were
going on. The first appellate court below
has recorded that the village in question
was denotified on 14.11.1970 and the sale
deed in question was executed much
subsequent to the said date. No evidence
was brought to the notice of this Court
establishing any fragmentation of the land
transferred through the impugned sale
deed
or
the
requirement
of
prior
32 INDIAN LAW REPORTS ALLAHABAD SERIES
permission being necessary for any
consolidation
proceedings
being
in
progress at the relevant point of time.

14. Lastly, the learned Senior
Counsel argued that the mandate of
Order XLI Rule 31 CPC was not
adhered to by the first appellate court.
On this aspect of the matter, this Court
is not convinced with the submissions
put forth, rather, the first appellate court
has thrashed out the relevant points of
determination
and
in
my
humble
consideration,
the
appellate
court
judgement does not fall on the strength
of the argument advanced by learned
counsel.

15. The exhaustive submissions
made by learned Senior Counsel on behalf
of the appellant are thus unconvincing and
both the substantial questions of law
framed above are answered in negative
and against the appellant-plaintiff.

16. The second appeal thus fails and
the same is hereby dismissed.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.
THE HON'BLE IFAQAT ALI KHAN , J.

CRL. MISC. BAIL APPLICATION No. 359475 of 2016
In
CRIMINAL APPEAL No. - 6137 of 2016
AND
CRL. MISC. BAIL APPLICATION No. 359419 of
2016
In
CRIMINAL APPEAL No. - 6138 of 2016

Ramveer @ Pappu ...Appellant
Versus
State of U.P . ...Opposite Party
Counsel for the Appellant:
Sri Rajesh Kumar Yadav

Counsel for the Opposite Party:
G.A.

A. Conviction under section 302, 307 IPC
and 3/25 of Arms Act. Bail Application
pending appeal. Period of prolonged
detention
suffered
though
invites
leniency by Courts, yet, no straight
jacket formula to grant bail on that
count.

Appeal ready for arguments. Reluctance to
argue the appeal. The nature of crime, the
gravity of offence, the sufficiency and nature
of evidence available, the background of the
offender and other circumstances relevant. -
Bail rejected. (Para 3)

Reluctance on the part of counsel whose
keenness appears to be confined only with
regard to procurement of bail. (Para8) (E-2)

(Delivered by Hon'ble Karuna Nand
Bajpayee, J. & Hon'ble Ifaqat Ali Khan, J.)

1. These two applications relate to
two connected appeals arising out of
common
judgment
and
order
of
conviction and, therefore, are being
disposed of by the common judgment. 2.
Counter affidavits filed in both the
appeals are taken on record.

3. The aforesaid bail applications have
been moved on behalf of appellants
Ramveer @ Pappu and Rajveer @ Ashok
Kumar seeking their release on bail who
have been convicted and sentenced in S.T.
No.293 of 2008 (State Vs. Rajveer @
Ashok Kumar & others) arising out Case
Crime No.58 of 2008, u/s 302, 307 I.P.C.
and in S.T. No.295 of 2008 (State Vs.
Ramveer @ Pappu) arising out of Case
Crime No.80 of 2008, under Section 3/25 of